"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Tuesday, June 11, 2013

A challenge to a certain form of campaign contribution limits

A column yesterday by Dan Bice discusses a lawsuit that I and my colleagues at WILL brought on behalf of Fred Young challenging Wisconsin's aggregate contribution limits. I think a few more things need to be said on the matter. Here they are.

The sub head of the column suggests that Mr. Young "wants campaign giving limits abolished." That is not entirely accurate. While proposed legislation raises the maximum that can be contributed to a single candidate, his lawsuit has nothing to do with that. It does not challenge the limitation on contributions to a single candidate or even to seek to have those limits raised.

Instead, it challenges the overall limit on the contributions to all candidates combined - what is generally called the "aggregate limit." (Bice refers to it as a limit on the amount of contributions that can be made "cumulatively" - which strikes me as a broader - and different - concept, combining temporal with cross-recipient limits.)

This is how it works. In Wisconsin, the maximum limit on a contribution to a candidate for state wide office is $ 10,000. The aggregate limit on contributions to all candidates is also $ 10,000. So, if Mr. Young - or anyone else - makes a perfectly legal campaign contribution of $ 10,000 to a candidate for Governor, he can give no more to anyone else that year - not even a candidate for the school board.

I know of no other state with an aggregate limit that is so stringent in relation to the overall limit. (In fact, most states don't have aggregate limits at all.)

This is why the fact that we are challenging only the aggregate limit is important.

The United States Supreme Court has long made clear that contribution limits burden the rights of free speech and association. This is not, as is often said, an assertion that "money is speech" but a recognition that the First Amendment protects the right of candidates to speak effectively and for persons to band together to promote candidates and causes. These rights require the ability to spend money. The First Amendment would be meaningless if all it protected was the right to stand on the corner and holler at passing cars.

This recognition of the impact of contribution limits on speech and association is not, incidentally, a product of the Court's 2010 opinion in Citizens United. It goes back to the Court's 1974 decision in Buckley v. Valeo.

So it has long been recognized that contribution limits implicate First Amendment rights. But the Court has also said that they may be subject to reasonable limits for one reason - to reduce the risk of corrupting the recipient, i.e., to prevent an unstated quid pro quo; a promise to take some particular action in exchange for a contribution. The idea is that maybe there is a level of contribution to a candidate that is so high that there is an inherent risk of this form of corruption or its appearance.

But - and here's the important part - the Court has also made clear that this is the only justification for limiting contributions. They may not be restricted to equalize "access" to politicians, to reduce the voice of large donors, to keep "money out of politics" or to level the playing field. This limitation on the contributions restrictions is also not a product of Citizens United. It was first announced in the 1974 Buckley decision and made absolutely clear in a 2007 decision involving Wisconsin Right to Life.

The Court has also made clear that the government cannot limit contributions on the basis that a candidate will "appreciate" contributions to someone else - either other candidates or independent organizations.

This is why aggregate limits cannot stand. The state of Wisconsin has decided that a contribution of as much as $ 10,000 to a candidate for state wide office (and lesser amounts for lesser offices) do not create this risk of corruption. Once that interest is gone, it has no interest in limiting the number of these "non-corrupting" contributions that a candidate may make. In other words, aggregate limits do not serve the only constitutionally permissible justification for limiting a citizen's right to contribute to candidates of his or her choice.

This is why we filed our lawsuit and we are hardly the only ones. A challenge to the federal aggregate limit is currently pending before the United States Supreme Court. (WILL filed an amicus brief in that case.)

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.